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diff --git a/talermerchantdemos/blog/articles/scrap1_25.html b/talermerchantdemos/blog/articles/scrap1_25.html deleted file mode 100644 index 337ad43..0000000 --- a/talermerchantdemos/blog/articles/scrap1_25.html +++ /dev/null @@ -1,1294 +0,0 @@ -<!-- This is the second edition of Free Software, Free Society: Selected Essays of Richard M. Stallman. - -Free Software Foundation - -51 Franklin Street, Fifth Floor - -Boston, MA 02110-1335 -Copyright C 2002, 2010 Free Software Foundation, Inc. -Verbatim copying and distribution of this entire book are permitted -worldwide, without royalty, in any medium, provided this notice is -preserved. Permission is granted to copy and distribute translations -of this book from the original English into another language provided -the translation has been approved by the Free Software Foundation and -the copyright notice and this permission notice are preserved on all -copies. - -ISBN 978-0-9831592-0-9 -Cover design by Rob Myers. - -Cover photograph by Peter Hinely. - --> - - - <a name="The-Danger-of-Software-Patents"> - </a> - <h1 class="chapter"> - 25. The Danger of Software Patents - </h1> - <blockquote class="smallquotation"> - <p> - This is an unedited transcript of the talk presented by Richard Stallman on 8 October 2009 at Victoria University of Wellington, in Wellington, New Zealand. - </p> - </blockquote> - <p> - I’m most known for starting the free software movement and leading -development of the - <a name="index-GNU-_0028see-also-both-software-and-GNU_0029-5"> - </a> - GNU operating system—although most of the people -who use the system mistakenly believe it’s Linux and think it was -started by somebody else a decade later. But I’m not going to be -speaking about any of that today. I’m here to talk about a legal -danger to all software developers, distributors, and users: the danger -of patents—on computational ideas, computational techniques, an idea -for something you can do on a computer. - </p> - <a name="index-patents_002c-difference-between-copyrights-and"> - </a> - <p> - Now, to understand this issue, the first thing you need to realize is -that patent law has nothing to do with copyright law—they’re totally -different. Whatever you learn about one of them, you can be sure it -doesn’t apply to the other. - </p> - <p> - So, for example, any time a person makes a statement about - <a name="index-_0060_0060intellectual-property_002c_0027_0027-bias-and-fallacy-of-term-_0028see-also-ownership_0029-8"> - </a> - “intellectual property,” that’s spreading confusion, because it’s -lumping together not only these two laws but also at least a dozen -others. They’re all different, and the result is any statement which -purports to be about “intellectual property” is pure confusion—either -the person making the statement is confused, or the person is trying -to confuse others. But either way, whether it’s accidental or -malicious, it’s confusion. - </p> - <p> - Protect yourself from this confusion by rejecting any statement which -makes use of that term. The only way to make thoughtful comments and -think clear thoughts about any one of these laws is to distinguish -it first from all the others, and talk or think about one particular -law, so that we can understand what it actually does and then form -conclusions about it. So I’ll be talking about patent law, and what -happens in those countries which have allowed patent law to restrict -software. - </p> - <p> - So, what does a patent do? A patent is an explicit, government-issued -monopoly on using a certain idea. In the patent there’s a part called -the claims, which describe exactly what you’re not allowed to do -(although they’re written in a way you probably can’t understand). It’s -a struggle to figure out what those prohibitions actually mean, and -they may go on for many pages of fine print. - </p> - <p> - So the patent typically lasts for 20 years, which is a fairly long -time in our field. Twenty years ago there was no World Wide Web—a -tremendous amount of the use of computers goes on in an area which -wasn’t even possible to propose 20 years ago. So of course everything -that people do on it is something that’s new since 20 years ago—at -least in some aspect it is new. So if patents had been applied for -we’d be prohibited from doing all of it, and we may be prohibited from -doing all of it in countries that have been foolish enough to have -such a policy. - </p> - <p> - Most of the time, when people describe the function of the patent -system, they have a vested interest in the system. They may be patent -lawyers, or they may work in the Patent Office, or they may be in the -patent office of a megacorporation, so they want you to like the -system. - </p> - <a name="index-Economist"> - </a> - <p> - The - <cite> - Economist - </cite> - once referred to the patent system as “a time-consuming -lottery.” If you’ve ever seen publicity for a lottery, you understand -how it works: they dwell on the very unlikely probability of winning, -and they don’t talk about the overwhelming likelihood of losing. In -this way, they intentionally and systematically present a biased -picture of what’s likely to happen to you, without actually lying -about any particular fact. - </p> - <p> - It’s the same way for the publicity for the patent system: they talk -about what it’s like to walk down the street with a patent in your -pocket—or first of all, what it’s like to get a patent, then what -it’s like to have a patent in your pocket, and every so often you can -pull it out and point it at somebody and say, “Give me your money.” - </p> - <p> - To compensate for their bias, I’m going to describe it from the other -side, the victim side—what it’s like for people who want to develop -or distribute or run software. You have to worry that any day someone -might walk up to you and point a patent at you and say, “Give me your -money.” - </p> - <p> - If you want to develop software in a country that allows software -patents, and you want to work with patent law, what will you have to -do? - </p> - <p> - You could try to make a list of all the ideas that one might be able -to find in the program that you’re about to write, aside from the fact -that you don’t know that when you start writing the program. [But] even -after you finish writing the program you wouldn’t be able to make such -a list. - </p> - <p> - The reason is…in the process -you conceived of it in one particular way—you’ve got a mental -structure to apply to your design. And because of that, it will block -you from seeing other structures that somebody might use to understand -the same program—because you’re not coming to it fresh; you already -designed it with one structure in mind. Someone else who sees it for -the first time might see a different structure, which involves -different ideas, and it would be hard for you to see what those other -ideas are. But nonetheless they’re implemented in your program, and -those patents could prohibit your program, if those ideas are -patented. - </p> - <p> - For instance, suppose there were graphical-idea patents and you wanted -to draw a square. Well, you would realize that if there was a patent -on a bottom edge, it would prohibit your square. You could put “bottom -edge” on the list of all ideas implemented in your drawing. But you -might not realize that somebody else with a patent on bottom corners -could sue you easily also, because he could take your drawing and turn -it by 45 degrees. And now your square is like this, and it has a -bottom corner. - </p> - <p> - So you couldn’t make a list of all the ideas which, if patented, could -prohibit your program. - </p> - <p> - What you might try to do is find out all the ideas that are -patented that might be in your program. Now you can’t do that -actually, because patent applications are kept secret for at least -18 months; and the result is the Patent Office could be -considering now whether to issue a patent, and they won’t tell you. -And this is not just an academic, theoretical possibility. - </p> - <a name="index-Compress"> - </a> - <p> - For instance, in 1984 the Compress program was written, a program for -compressing files using the - <a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-2"> - </a> - <a name="index-patents_002c-LZW-data-compression-algorithm-1"> - </a> - data compression algorithm, and at -that time there was no patent on that algorithm for compressing -files. The author got the algorithm from an article in a journal. That -was when we thought that the purpose of computer science journals was -to publish algorithms so people could use them. - </p> - <p> - He wrote this program, he released it, and in 1985 a patent was issued -on that algorithm. But the patent holder was cunning and didn’t -immediately go around telling people to stop using it. The patent -holder figured, “Let’s let everybody dig their grave deeper.” A few -years later they started threatening people; it became clear we -couldn’t use Compress, so I asked for people to suggest other -algorithms we could use for compressing files. - </p> - <p> - And somebody wrote and said, “I developed another data compression -algorithm that works better, I’ve written a program, I’d like to give -it to you.” So we got ready to release it, and a week before it was -ready to be released, I read in the - <a name="index-New-York-Times-1"> - </a> - <cite> - New York Times - </cite> - weekly patent -column, which I rarely saw—it’s a couple of times a year I might see -it—but just by luck I saw that someone had gotten a patent for -“inventing a new method of compressing data.” And so I said we had -better look at this, and sure enough it covered the program we were -about to release. But it could have been worse: the patent could have -been issued a year later, or two years later, or three years later, or -five years later. - </p> - <a name="index-gzip-1"> - </a> - <p> - Anyway, someone else came up with another, even better compression -algorithm, which was used in the program gzip, and just about -everybody who wanted to compress files switched to gzip, so it sounds -like a happy ending. But you’ll hear more later. It’s not entirely -so happy. - </p> - <p> - So, you can’t find out about the patents that are being considered -even though they may prohibit your work once they come out, but you -can find out about the already issued patents. They’re all published -by the Patent Office. The problem is you can’t read them all, because -there are too many of them. - </p> - <p> - In the US I believe there are hundreds of thousands of -software patents; keeping track of them would be a tremendous job. So -you’re going to have to search for relevant patents. And you’ll find a -lot of relevant patents, but you won’t necessarily find them all. - </p> - <p> - For instance, in the 80s and 90s, there was a patent on “natural order -recalculation” in spreadsheets. Somebody once asked me for a copy of -it, so I looked in our computer file which lists the patent numbers. -And then I pulled out the drawer to get the paper copy of this patent -and xeroxed it and sent it to him. And when he got it, he said, “I -think you sent me the wrong patent. This is something about -compilers.” So I thought maybe our file has the wrong number in it. -I looked in it again, and sure enough it said, “A method for compiling -formulas into object code.” So I started to read it to see if it was -indeed the wrong patent. I read the claims, and sure enough it was -the natural order recalculation patent, but it didn’t use those terms. -It didn’t use the term “spreadsheet.” In fact, what the patent -prohibited was dozens of different ways of implementing topological -sort—all the ways they could think of. But I don’t think it used the -term “topological sort.” - </p> - <p> - So if you were writing a spreadsheet and you tried to find relevant -patents by searching, you might have found a lot of patents. But you -wouldn’t have found this one until you told somebody, “Oh, I’m working -on a spreadsheet,” and he said, “Oh, did you know those other -companies that are making spreadsheets are getting sued?” Then you -would have found out. - </p> - <p> - Well, you can’t find all the patents by searching, but you can find a -lot of them. And then you’ve got to figure out what they mean, which -is hard, because patents are written in tortuous legal language which -is very hard to understand the real meaning of. So you’re going to -have to spend a lot of time talking with an expensive lawyer -explaining what you want to do in order to find out from the lawyer -whether you’re allowed to do it. - </p> - <a name="index-Heckel_002c-Paul"> - </a> - <p> - Even the patent holders often can’t recognize just what their patents -mean. For instance, there’s somebody named Paul Heckel who released a -program for displaying a lot of data on a small screen, and based on a -couple of the ideas in that program he got a couple of patents. - </p> - <p> - I once tried to find a simple way to describe what claim 1 of one of -those patents covered. I found that I couldn’t find any simpler way -of saying it than what was in the patent itself; and that sentence, I -couldn’t manage to keep it all in my mind at once, no matter how hard -I tried. - </p> - <a name="index-HyperCard"> - </a> - <p> - And Heckel couldn’t follow it either, because when he saw HyperCard, -all he noticed was it was nothing like his program. It didn’t occur to -him that the way his patent was written it might prohibit HyperCard; -but his lawyer had that idea, so he threatened - <a name="index-Apple-_0028see-also-DRM_0029-1"> - </a> - Apple. And then he -threatened Apple’s customers, and eventually Apple made a settlement -with him which is secret, so we don’t know who really won. And this is -just an illustration of how hard it is for anybody to understand what -a patent does or doesn’t prohibit. - </p> - <p> - In fact, I once gave this speech and Heckel was in the audience. And -at this point he jumped up and said, “That’s not true, I just didn’t -know the scope of my protection.” And I said, “Yeah, that’s what I -said,” at which point he sat down and that was the end of my -experience being heckled by Heckel. If I had said no, he probably -would have found a way to argue with me. - </p> - <p> - Anyway, after a long, expensive conversation with a lawyer, the -lawyer will give you an answer like this: - </p> - <blockquote class="smallquotation"> - <p> - If you do something in this area, you’re almost certain to lose a -lawsuit; if you do something in this area, there’s a considerable -chance of losing a lawsuit; and if you really want to be safe you’ve -got to stay out of this area. But there’s a sizeable element of chance -in the outcome of any lawsuit. - </p> - </blockquote> - <p> - So now that you have clear, predictable rules for doing business, what -are you actually going to do? Well, there are three things that you -could do to deal with the issue of any particular patent. One is to -avoid it, another is to get a license for it, and the third is to -invalidate it. So I’ll talk about these one by one. - </p> - <p> - First, there’s the possibility of avoiding the patent, which means, -don’t implement what it prohibits. Of course, if it’s hard to tell -what it prohibits, it might be hard to tell what would suffice to -avoid it. - </p> - <a name="index-Sun-Microsystems-1"> - </a> - <a name="index-Kodak"> - </a> - <p> - A couple of years ago Kodak sued Sun [for] using a patent for something -having to do with object-oriented programming, and Sun didn’t think it -was infringing that patent. But the court decided it was; and when -other people look at that patent they haven’t the faintest idea -whether that decision was right or not. No one can tell what that -patent does or doesn’t cover, but Sun had to pay hundreds of millions -of dollars because of violating a completely incomprehensible law. - </p> - <p> - Sometimes you can tell what you need to avoid, and sometimes what -you need to avoid is an algorithm. - </p> - <a name="index-FFT-_0028fast-Fourier-transform_0029"> - </a> - <p> - For instance, I saw a patent for something like the fast Fourier -transform, but it ran twice as fast. Well, if the ordinary FFT is fast -enough for your application then that’s an easy way to avoid this -other one. And most of the time that would work. Once in a while you -might be trying to do something where it runs doing FFT all the time, -and it’s just barely fast enough using the faster algorithm. And then -you can’t avoid it, although maybe you could wait a couple of years -for a faster computer. But that’s going to be rare. Most of the time -that patent will to be easy to avoid. - </p> - <a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-3"> - </a> - <a name="index-patents_002c-LZW-data-compression-algorithm-2"> - </a> - <p> - On the other hand, a patent on an algorithm may be impossible to -avoid. Consider the LZW data compression algorithm. Well, as I -explained, we found a better data compression algorithm, and everybody -who wanted to compress files switched to the program gzip which used -the better algorithm. And the reason is, if you just want to compress -the file and uncompress it later, you can tell people to use this -program to uncompress it; then you can use any program with any -algorithm, and you only care how well it works. - </p> - <a name="index-PostScript-language"> - </a> - <p> - But LZW is used for other things, too; for instance the PostScript -language specifies operators for LZW compression and LZW -uncompression. It’s no use having another, better algorithm because -it makes a different format of data. They’re not interoperable. If you -compress it with the gzip algorithm, you won’t be able to uncompress -it using LZW. So no matter how good your other algorithm is, and no -matter what it is, it just doesn’t enable you to implement PostScript -according to the specs. - </p> - <p> - But I noticed that users rarely ask their printers to compress -things. Generally the only thing they want their printers to do is to -uncompress; and I also noticed that both of the patents on the LZW -algorithm were written in such a way that if your system can only -uncompress, it’s not forbidden. These patents were written so that -they covered compression, and they had other claims covering both -compression and uncompression; but there was no claim covering only -uncompression. So I realized that if we implement only the -uncompression for LZW, we would be safe. And although it would not -satisfy the specification, it would please the users sufficiently; it -would do what they actually needed. So that’s how we barely squeaked -by avoiding the two patents. - </p> - <a name="index-GIF-1"> - </a> - <a name="index-PNG"> - </a> - <p> - Now there is gif format, for images. That uses the LZW algorithm -also. It didn’t take long for people to define another image format, -called png, which stands for “Png’s Not Gif.” I think it uses the -gzip algorithm. And we started saying to people, “Don’t use gif -format, it’s dangerous. Switch to png.” And the users said, “Well, -maybe some day, but the browsers don’t implement it yet,” and the -browser developers said, “We may implement it someday, but there’s not -much demand from users.” - <a name="index-gzip-2"> - </a> - </p> - <p> - Well, it’s pretty obvious what’s going on—gif was a de facto -standard. In effect, asking people to switch to a different format, -instead of their de facto standard, is like asking everyone in New -Zealand to speak Hungarian. People will say, “Well, yeah, I’ll learn to -speak it after everyone else does.” And so we never succeeded in -asking people to stop using gif, even though one of those patent -holders was going around to operators of web sites, -threatening to sue them unless they could prove that all of the gifs on -the site were made with authorized, licensed software. - </p> - <a name="index-JPEG"> - </a> - <p> - So gif was a dangerous trap for a large part of our community. We -thought we had an alternative to gif format, namely jpeg, but then -somebody said, “I was just looking through my portfolio of patents”—I -think it was somebody that just bought patents and used them to -threaten people—and he said, “and I found that one of them covers jpeg -format.” - </p> - <p> - Well, jpeg was not a de facto standard, it’s an official standard, -issued by a standards committee; and the committee had a lawyer too. -Their lawyer said he didn’t think that this patent actually covered -jpeg format. - </p> - <p> - So who’s right? Well, this patent holder sued a bunch of companies, -and if there was a decision, it would have said who was right. But I -haven’t heard about a decision; I’m not sure if there ever was one. I -think they settled, and the settlement is almost certainly secret, -which means that it didn’t tell us anything about who’s right. - </p> - <p> - These are fairly lightweight cases: one patent on jpeg, two patents -on the LZW algorithm used in gif. Now you might wonder how come there -are two patents on the same algorithm? It’s not supposed to happen, -but it did. And the reason is that the patent examiners can’t possibly -take the time to study every pair of things they might need to study -and compare, because they’re not allowed to take that much time. And -because algorithms are just mathematics, there’s no way you can narrow -down which applications and patents you need to compare. - </p> - <a name="index-patents_002c-LZW-data-compression-algorithm-3"> - </a> - <a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-4"> - </a> - <p> - You see, in physical engineering fields, they can use the physical -nature of what’s going on to narrow things down. For instance, in -chemical engineering, they can say, “What are the substances going in? -What are the substances coming out?” If two different [patent] -applications are different in that way, then they’re not the same -process so you don’t need to worry. But the same math can be -represented in ways that can look very different, and until you study -them both together, you don’t realize they’re talking about the same -thing. And, because of this, it’s quite common to see the same thing -get patented multiple times [in software]. - </p> - <p> - Remember that program that was killed by a patent before we released -it? Well, that algorithm got patented twice also. In one little field -we’ve seen it happen in two cases that we ran into—the same algorithm -being patented twice. Well, I think my explanation tells you why that -happens. - </p> - <p> - But one or two patents is a lightweight case. What about - <a name="index-MPEG_002d2-1"> - </a> - mpeg2, the -video format? I saw a list of over 70 patents covering that, and the -negotiations to arrange a way for somebody to license all those -patents took longer than developing the standard itself. The jpeg -committee wanted to develop a follow-on standard, and they gave -up. They said there were too many patents; there was no way to do it. - <a name="index-JPEG-1"> - </a> - </p> - <p> - Sometimes it’s a feature that’s patented, and the only way to avoid that -patent is not to implement that feature. For instance, the users of -the word processor - <a name="index-Xywrite"> - </a> - Xywrite once got a downgrade in the mail, which -removed a feature. The feature was that you could define a list of -abbreviations. For instance, if you define - <a name="index-abbreviations_002c-patents-on"> - </a> - <a name="index-patents_002c-on-abbreviations"> - </a> - “exp” as an abbreviation -for “experiment,” then if you type “exp-space” or “exp-comma,” the “exp” -would change automatically to “experiment.” - </p> - <p> - Then somebody who had a patent on this feature threatened them, and -they concluded that the only thing they could do was to take the -feature out. And so they sent all the users a downgrade. - </p> - <p> - But they also contacted me, because my - <a name="index-Emacs_002c-GNU-7"> - </a> - <a name="index-GNU_002c-GNU-Emacs-7"> - </a> - Emacs editor had a feature like -that starting from the late 70s. And it was described in the Emacs -manual, so they thought I might be able to help them invalidate that -patent. Well, I’m happy to know I’ve had at least one patentable idea -in my life, but I’m unhappy that someone else patented it. - </p> - <p> - Fortunately, in fact, that patent was eventually invalidated, and -partly on the strength of the fact that I had published using it -earlier. But in the meantime they had had to remove this feature. - </p> - <p> - Now, to remove one or two features may not be a disaster. But when -you have to remove 50 features, you could do it, but people are likely -to say, “This program’s no good; it’s missing all the features I want.” -So it may not be a solution. And sometimes a patent is so broad that -it wipes out an entire field, like the patent on public-key -encryption, which in fact put public-key encryption basically off -limits for about ten years. - </p> - <p> - So that’s the option of avoiding the patent—often possible, but -sometimes not, and there’s a limit to how many patents you can avoid. - </p> - <p> - What about the next possibility, of getting a license for the patent? - </p> - <a name="index-games_002c-patents-and"> - </a> - <p> - Well, the patent holder may not offer you a license. It’s entirely up -to him. He could say, “I just want to shut you down.” I once got a -letter from somebody whose family business was making casino games, -which were of course computerized, and he had been threatened by -a patent holder who wanted to make his business shut down. He sent me -the patent. Claim 1 was something like “a network with a multiplicity -of computers, in which each computer supports a multiplicity of games, -and allows a multiplicity of game sessions at the same time.” - </p> - <a name="index-universities-4"> - </a> - <p> - Now, I’m sure in the 1980s there was a university that set up a room -with a network of workstations, and each workstation had some kind of -windowing facility. All they had to do was to install multiple games -and it would be possible to display multiple game sessions at -once. This is so trivial and uninteresting that nobody would have -bothered to publish an article about doing it. No one would have been -interested in publishing an article about doing it, but it was worth -patenting it. If it had occurred to you that you could get a monopoly -on this trivial thing, then you could shut down your competitors with -it. - <a name="index-games_002c-patents-and-1"> - </a> - </p> - <p> - But why does the Patent Office issue so many patents that seem absurd -and trivial to us? - </p> - <p> - It’s not because the patent examiners are stupid, it’s because they’re -following a system, and the system has rules, and the rules lead to -this result. - </p> - <p> - You see, if somebody has made a machine that does something once, and -somebody else designs a machine that will do the same thing, but N -times, for us that’s a - <tt> - for - </tt> - -loop, but for the Patent Office that’s an -invention. If there are machines that can do A, and there are -machines that can do B, and somebody designs a machine that can do A -or B, for us that’s an - <tt> - if-then-else - </tt> - statement, but for the Patent -Office that’s an invention. So they have very low standards, and they -follow those standards; and the result is patents that look absurd and -trivial to us. Whether they’re legally valid I can’t say. But every -programmer who sees them laughs. - </p> - <p> - In any case, I was unable to suggest anything he could do to help -himself, and he had to shut down his business. But most patent holders -will offer you a license. It’s likely to be rather expensive. - </p> - <p> - But there are some software developers that find it particularly easy -to get licenses, most of the time. Those are the megacorporations. In -any field the megacorporations generally own about half the patents, -and they cross-license each other, and they can make anybody else -cross-license if he’s really producing anything. The result is that -they end up painlessly with licenses for almost all the patents. - </p> - <a name="index-IBM"> - </a> - <a name="index-patents_002c-IBM-and"> - </a> - <a name="index-Think-magazine"> - </a> - <p> - IBM wrote an article in its house magazine, - <cite> - Think - </cite> - magazine—I think -it’s issue 5, 1990—about the benefit IBM got from its almost 9,000 US -patents at the time (now it’s up to 45,000 or more). They said that -one of the benefits was that they collected money, but the main -benefit, which they said was perhaps an order of magnitude greater, -was “getting access to the patents of others,” namely cross-licensing. - </p> - <p> - What this means is since IBM, with so many patents, can make almost -everybody give them a cross-license, IBM avoids almost all the grief -that the patent system would have inflicted on anybody else. So that’s -why IBM wants software patents. That’s why the megacorporations in -general want software patents, because they know that by -cross-licensing, they will have a sort of exclusive club on top of a -mountain peak. And all the rest of us will be down here, and there’s -no way we can get up there. You know, if you’re a genius, you might -start up a small company and get some patents, but you’ll never get -into IBM’s league, no matter what you do. - </p> - <p> - Now a lot of companies tell their employees, “Get us patents so we can -defend ourselves” and they mean, “use them to try to get -cross-licensing,” but it just doesn’t work well. It’s not an effective -strategy if you’ve got a small number of patents. - </p> - <p> - Suppose you’ve got three patents. One points there, one points there, -and one points there, and somebody over there points a patent at you. -Well, your three patents don’t help you at all, because none of them -points at him. On the other hand, sooner or later, somebody in the -company is going to notice that this patent is actually pointing at -some people, and [the company] could threaten them and squeeze money -out of them—never mind that those people didn’t attack this company. - </p> - <p> - So if your employer says to you, “We need some patents to defend -ourselves, so help us get patents,” I recommend this response: - </p> - <blockquote class="smallquotation"> - <p> - Boss, I trust you and I’m sure you would only use those patents to -defend the company if it’s attacked. But I don’t know who’s going to -be the CEO of this company in five years. For all I know, it might get -acquired by Microsoft. So I really can’t trust the company’s word to -only use these patents for defense unless I get it in writing. Please -put it in writing that any patents I provide for the company will only -be used for self-defense and collective security, and not for -repression, and then I’ll be able to get patents for the company with -a clean conscience. - </p> - </blockquote> - <p> - It would be most interesting to raise this not just in private with -your boss, but also on the company’s discussion list. - </p> - <p> - The other thing that could happen is that the company could fail and -its assets could be auctioned off, including the patents; and the -patents will be bought by someone who means to use them to do -something nasty. - </p> - <p> - This cross-licensing practice is very important to understand, because -this is what punctures the argument of the software patent advocates -who say that software patents are needed to protect the starving -genius. They give you a scenario which is a series of unlikelihoods. - </p> - <p> - So let’s look at it. According to this scenario, there’s a brilliant -designer of whatever, who’s been working for years by himself in his -attic coming up with a better way to do whatever it is. And now that -it’s ready, he wants to start a business and mass-produce this thing; -and because his idea is so good his company will inevitably succeed— -except for one thing: the big companies will compete with him and take -all his market the away. And because of this, his business will almost -certainly fail, and then he will starve. - </p> - <p> - Well, let’s look at all the unlikely assumptions here. - </p> - <p> - First of all, that he comes up with this idea working by -himself. That’s not very likely. In a high-tech field, most progress -is made by people working in a field, doing things and talking with -people in the field. But I wouldn’t say it’s impossible, not that one -thing by itself. - </p> - <p> - But anyway the next supposition is that he’s going to start a business -and that it’s going to succeed. Well, just because he’s a brilliant -engineer doesn’t mean that he’s any good at running a business. Most -new businesses fail; more than 95 percent of them, I think, fail within a few -years. So that’s probably what’s going to happen to him, no matter -what. - </p> - <p> - Ok, let’s assume that in addition to being a brilliant engineer who -came up with something great by himself, he’s also talented at running -businesses. If he has a knack for running businesses, then maybe his -business won’t fail. After all, not all new businesses fail, there are -a certain few that succeed. Well, if he understands business, then -instead of trying to go head to head with large companies, he might -try to do things that small companies are better at and have a better -chance of succeeding. He might succeed. But let’s suppose it fails -anyway. If he’s so brilliant and has a knack for running businesses, -I’m sure he won’t starve, because somebody will want to give him a -job. - </p> - <p> - So a series of unlikelihoods—it’s not a very plausible scenario. But -let’s look at it anyway. - </p> - <p> - Because where they go from there is to say the patent system will -“protect” our starving genius, because he can get a patent on this -technique. And then when IBM wants to compete with him, he says, -“IBM, you can’t compete with me, because I’ve got this patent,” and -IBM says, “Oh, no, not again!” - </p> - <p> - Well, here’s what really happens. - </p> - <p> - IBM says, “Oh, how nice, you have a patent. Well, we have this patent, -and this patent, and this patent, and this patent, and this patent, -all of which cover other ideas implemented in your product, and if you -think you can fight us on all those, we’ll pull out some more. So -let’s sign a cross-license agreement, and that way nobody will get -hurt.” Now since we’ve assumed that our genius understands business, -he’s going to realize that he has no choice. He’s going to sign the -cross-license agreement, as just about everybody does when IBM demands -it. And then this means that IBM will get “access” to his patent, -meaning IBM would be free to compete with him just as if there were no -patents, which means that the supposed benefit that they claim he -would get by having this patent is not real. He won’t get this -benefit. - </p> - <p> - The patent might “protect” him from competition from you or me, but -not from IBM—not from the very megacorporations which the scenario -says are the threat to him. You know in advance that there’s got to -be a flaw in this reasoning when people who are lobbyists for -megacorporations recommend a policy supposedly because it’s going to -protect their small competitors from them. If it really were going to -do that, they wouldn’t be in favor of it. But this explains why -[software patents] won’t do it. - </p> - <p> - Even IBM can’t always do this, because there are companies that we -refer to as patent trolls or patent parasites, and their only business -is using patents to squeeze money out of people who really make -something. - </p> - <p> - Patent lawyers tell us that it’s really wonderful to have patents in -your field, but they don’t have patents in their field. -There are no patents on how to send or write a threatening letter, no -patents on how to file a lawsuit, and no patents on how to persuade a -judge or jury, so even IBM can’t make the patent trolls -cross-license. But IBM figures, “Our competition will have to pay them -too; this is just part of the cost of doing business, and we can live -with it.” IBM and the other megacorporations figure that the general -dominion over all activity that they get from their patents is good -for them, and paying off the trolls they can live with. So that’s why -they want software patents. - <a name="index-IBM-1"> - </a> - <a name="index-patents_002c-IBM-and-1"> - </a> - </p> - <p> - There are also certain software developers who find it particularly -difficult to get a patent license, and those are the developers of -free software. The reason is that the usual patent license has -conditions we can’t possibly fulfill, because usual patent licenses -demand a payment per copy. But when software gives users the freedom -to distribute and make more copies, we have no way to count the copies -that exist. - </p> - <p> - If someone offered me a patent license for a payment of one-millionth -of a dollar per copy, the total amount of money I’d have to pay maybe -is in my pocket now. Maybe it’s $50, but I don’t know if it’s -$50, or $49, or what, because there’s no way I can count the -copies that people have made. - </p> - <p> - A patent holder doesn’t have to demand a payment per copy; a patent -holder could offer you a license for a single lump sum, but those lump -sums tend to be big, like US$100,000. - </p> - <p> - And the reason that we’ve been able to develop so much -freedom-respecting software is [that] we can develop software without -money, but we can’t pay a lot of money without money. If we’re forced -to pay for the privilege of writing software for the public, we won’t -be able to do it very much. - </p> - <p> - That’s the possibility of getting a license for the patent. The other -possibility is to invalidate the patent. If the country considers -software patents to be basically valid, and allowed, the only question -is whether that particular patent meets the criteria. It’s only -useful to go to court if you’ve got an argument to make that might -prevail. - </p> - <p> - What would that argument be? You have to find evidence that, years -ago, before the patent was applied for, people knew about the same -idea. And you’d have to find things today that demonstrate that they -knew about it publicly at that time. So the dice were cast years ago, -and if they came up favorably for you, and if you can prove that fact -today, then you have an argument to use to try to invalidate the -patent. And it might work. - </p> - <p> - It might cost you a lot of money to go through this case, and as a -result, a probably invalid patent is a very frightening weapon to be -threatened with if you don’t have a lot of money. There are people who -can’t afford to defend their rights—lots of them. The ones who can -afford it are the exception. - </p> - <p> - These are the three things that you might be able to do about each -patent that prohibits something in your program. The thing is, whether -each one is possible depends on different details of the -circumstances, so some of the time, none of them is possible; and when -that happens, your project is dead. - </p> - <p> - But lawyers in most countries tell us, “Don’t try to find the patents -in advance,” and the reason is that the penalty for infringement is -bigger if you knew about the patent. So what they tell you is “Keep -your eyes shut. Don’t try to find out about the patents, just go -blindly taking your design decisions, and hope.” - </p> - <p> - And of course, with each single design decision, you probably don’t -step on a patent. Probably nothing happens to you. But there are so many -steps you have to take to get across the minefield, it’s very unlikely -you will get through safely. And of course, the patent holders don’t -all show up at the same time, so you don’t know how many there are -going to be. - </p> - <p> - The patent holder of the natural order recalculation patent was -demanding 5 percent of the gross sales of every spreadsheet. You could -imagine paying for a few such licenses, but what happens when patent -holder number 20 comes along, and wants you to pay out the last -remaining 5 percent? And then what happens when patent holder number 21 comes -along? - </p> - <p> - People in business say that this scenario is amusing but absurd, -because your business would fail long before you got there. They told -me that two or three such licenses would make your business fail. So -you’d never get to 20. They show up one by one, so you never know how -many more there are going to be. - </p> - <p> - Software patents are a mess. They’re a mess for software developers, -but in addition they’re a restriction on every computer user because -software patents restrict what you can do on your computer. - </p> - <p> - This is very different from patents, for instance, on automobile -engines. These only restrict companies that make cars; they don’t -restrict you and me. But software patents do restrict you and me, and -everybody who uses computers. So we can’t think of them in purely -economic terms; we can’t judge this issue purely in economic -terms. There’s something more important at stake. - </p> - <a name="index-patents_002c-economically-self_002ddefeating"> - </a> - <p> - But even in economic terms, the system is self-defeating, because its -purpose is supposed to be to promote progress. Supposedly by creating -this artificial incentive for people to publish ideas, it’s going to -help the field progress. But all it does is the exact opposite, -because the big job in software is not coming up with ideas, it’s -implementing thousands of ideas together in one program. And software -patents obstruct that, so they’re economically self-defeating. - </p> - <p> - And there’s even economic research showing that this is so—showing -how in a field with a lot of incremental innovation, a patent system -can actually reduce investment in R & D. And of course, it also -obstructs development in other ways. So even if we ignore the -injustice of software patents, even if we were to look at it in the -narrow economic terms that are usually proposed, it’s still harmful. - </p> - <p> - People sometimes respond by saying that “People in other fields have -been living with patents for decades, and they’ve gotten used to it, -so why should you be an exception?” - </p> - <p> - Now, that question has an absurd assumption. It’s like saying, “Other -people get cancer, why shouldn’t you?” I think every time someone -doesn’t get cancer, that’s good, regardless of what happened to the -others. That question is absurd because of its presupposition that -somehow we all have a duty to suffer the harm done by patents. - </p> - <p> - But there is a sensible question buried inside it, and that sensible -question is “What differences are there between various fields that -might affect what is good or bad patent policy in those fields?” - </p> - <p> - There is an important basic difference between fields in regard to how -many patents are likely to prohibit or cover parts of any one -product. - </p> - <p> - Now we have a naive idea in our minds which I’m trying to get rid of, -because it’s not true. And it’s that on any one product there is one -patent, and that patent covers the overall design of that product. So -if you design a new product, it can’t be patented already, and you -will have an opportunity to get “the patent” on that product. - </p> - <p> - That’s not how things work. In the 1800s, maybe they did, but not -now. In fact, fields fall on a spectrum of how many patents [there -are] per product. The beginning of the spectrum is one, but no field -is like that today; fields are at various places on this spectrum. - </p> - <p> - The field that’s closest to that is pharmaceuticals. A few decades -ago, there really was one patent per pharmaceutical, at least at any -time, because the patent covered the entire chemical formula of that -one particular substance. Back then, if you developed a new drug, you -could be sure it wasn’t already patented by somebody else and you -could get the one patent on that drug. - </p> - <p> - But that’s not how it works now. Now there are broader patents, so -now you could develop a new drug, and you’re not allowed to make it -because somebody has a broader patent which covers it already. - </p> - <p> - And there might even be a few such patents covering your new drug -simultaneously, but there won’t be hundreds. The reason is, our -ability to do biochemical engineering is so limited that nobody knows -how to combine so many ideas to make something that’s useful in -medicine. If you can combine a couple of them you’re doing pretty -well at our level of knowledge. But other fields involve combining -more ideas to make one thing. - </p> - <p> - At the other end of the spectrum is software, where we can combine -more ideas into one usable design than anybody else, because our field -is basically easier than all other fields. I’m presuming that the -intelligence of people in our field is the same as that of people in -physical engineering. It’s not that we’re fundamentally better than -they are; it’s that our field is fundamentally easier, because we’re -working with mathematics. - </p> - <p> - A program is made out of mathematical components, which have a -definition, whereas physical objects don’t have a definition. The -matter does what it does, so through the perversity of matter, your -design may not work the way it “should” have worked. And that’s just -tough. You can’t say that the matter has a bug in it, and the -physical universe should get fixed. [Whereas] we [programmers] can -make a castle that rests on a mathematically thin line, and it stays -up because nothing weighs anything. - </p> - <p> - There’re so many complications you have to cope with in physical -engineering that we don’t have to worry about. - </p> - <p> - For instance, when I put an - <code> - if - </code> - -statement inside of a - <code> - while - </code> - -loop, - </p> - <ul> - <li> - I don’t have to worry that if this - <code> - while - </code> - -loop repeats at the wrong - rate, the - <code> - if - </code> - -statement might start to vibrate and it might resonate - and crack; - </li> - <li> - I don’t have to worry that if it resonates much faster—you know, - millions of times per second—that it might generate radio frequency - signals that might induce wrong values in other parts of the - program; - </li> - <li> - I don’t have to worry that corrosive fluids from the environment - might seep in between the - <code> - if - </code> - -statement and the - <code> - while - </code> - -statement and - start eating away at them until the signals don’t pass anymore; - </li> - <li> - I don’t have to worry about how the heat generated by my - <code> - if - </code> - -statement is going to get out through the - <code> - while - </code> - -statement so that - it doesn’t make the - <code> - if - </code> - -statement burn out; and - </li> - <li> - I don’t have to worry about how I would take out the broken - <code> - if - </code> - -statement if it does crack, burn, or corrode, and replace it with - another - <code> - if - </code> - -statement to make the program run again. - </li> - </ul> - <p> - For that matter, I don’t have to worry about how I’m going to insert -the - <code> - if - </code> - -statement inside the - <code> - while - </code> - -statement every time I produce a -copy of the program. I don’t have to design a factory to make copies -of my program, because there are various general commands that will -make copies of anything. - </p> - <p> - If I want to make copies on CD, I just have to write a master; and -there’s one program I can [use to] make a master out of anything, -write any data I want. I can make a master CD and write it and send -it off to a factory, and they’ll duplicate whatever I send them. I -don’t have to design a different factory for each thing I want to -duplicate. - </p> - <p> - Very often with physical engineering you have to do that; you have to -design products for manufacturability. Designing the factory may even -be a bigger job than designing the product, and then you may have to -spend millions of dollars to build the factory. So with all of this -trouble, you’re not going to be able to put together so many different -ideas in one product and have it work. - </p> - <p> - A physical design with a million nonrepeating different design -elements is a gigantic project. A program with a million different -design elements, that’s nothing. It’s a few hundred thousand lines of -code, and a few people will write that in a few years, so it’s not a -big deal. So the result is that the patent system weighs -proportionately heavier on us than it does on people in any other -field who are being held back by the perversity of matter. - </p> - <a name="index-Linux-kernel-3"> - </a> - <a name="index-kernel_002c-Linux-3"> - </a> - <p> - A lawyer did a study of one particular large program, namely the -kernel Linux, which is used together with the - <a name="index-GNU-_0028see-also-both-software-and-GNU_0029-6"> - </a> - GNU operating system -that I launched. This was five years ago now; he found 283 different -US patents, each of which appeared to prohibit some computation done -somewhere in the code of Linux. At the time I saw an article saying -that Linux was 0.25 percent of the whole system. So by multiplying 300 by 400 -we can estimate the number of patents that would prohibit something in -the whole system as being around 100,000. This is a very rough -estimate only, and no more accurate information is available, since -trying to figure it out would be a gigantic task. - </p> - <p> - Now this lawyer did not publish the list of patents, because that -would have endangered the developers of Linux the kernel, putting them -in a position where the penalties if they were sued would be -greater. He didn’t want to hurt them; he wanted to demonstrate how bad -this problem is, of patent gridlock. - <a name="index-Linux-kernel-4"> - </a> - <a name="index-kernel_002c-Linux-4"> - </a> - </p> - <a name="index-development_002c-patents"> - </a> - <a name="index-patents_002c-difference-between-copyrights-and-1"> - </a> - <a name="index-copyright_002c-difference-between-patents-and"> - </a> - <p> - Programmers can understand this immediately, but politicians usually -don’t know much about programming; they usually imagine that patents -are basically much like copyrights, only somehow stronger. They -imagine that since software developers are not endangered by the -copyrights on their work, that they won’t be endangered by the patents -on their work either. They imagine that, since when you write a -program you have the copyright, [therefore likewise] if you write a -program you have the patents also. This is false—so how do we give -them a clue what patents would really do? What they really do in -countries like the US? - </p> - <p> - I find it’s useful to make an analogy between software and -symphonies. Here’s why it’s a good analogy. - </p> - <p> - A program or symphony combines many ideas. A symphony combines many -musical ideas. But you can’t just pick a bunch of ideas and say -“Here’s my combination of ideas, do you like it?” Because in order to -make them work you have to implement them all. You can’t just pick -musical ideas and list them and say, “Hey, how do you like this -combination?” You can’t hear that [list]. You have to write notes -which implement all these ideas together. - </p> - <p> - The hard task, the thing most of us wouldn’t be any good at, is -writing all these notes to make the whole thing sound good. Sure, lots -of us could pick musical ideas out of a list, but we wouldn’t know how -to write a good-sounding symphony to implement those ideas. Only some -of us have that talent. That’s the thing that limits you. I could -probably invent a few musical ideas, but I wouldn’t know how to use -them to any effect. - </p> - <p> - So imagine that it’s the 1700s, and the governments of Europe decide -that they want to promote the progress of symphonic music by -establishing a system of musical idea patents, so that any musical -idea described in words could be patented. - </p> - <p> - For instance, using a particular sequence of notes as a motif could be -patented, or a chord progression could be patented, or a rhythmic -pattern could be patented, or using certain instruments by themselves -could be patented, or a format of repetitions in a movement could be -patented. Any sort of musical idea that could be described in words -would have been patentable. - </p> - <a name="index-Beethoven_002c-Ludwig-van"> - </a> - <p> - Now imagine that it’s 1800 and you’re Beethoven, and you want to write -a symphony. You’re going to find it’s much harder to write a symphony -you don’t get sued for than to write one that sounds good, because you -have to thread your way around all the patents that exist. If you -complained about this, the patent holders would say, “Oh, Beethoven, -you’re just jealous because we had these ideas first. Why don’t you go -and think of some ideas of your own?” - </p> - <p> - Now Beethoven had ideas of his own. The reason he’s considered a great -composer is because of all of the new ideas that he had, and he -actually used. And he knew how to use them in such a way that they -would work, which was to combine them with lots of well-known -ideas. He could put a few new ideas into a composition together with a -lot of old and uncontroversial ideas. And the result was a piece that -was controversial, but not so much so that people couldn’t get used to -it. - </p> - <p> - To us, Beethoven’s music doesn’t sound controversial; I’m told it was, -when it was new. But because he combined his new ideas with a lot of -known ideas, he was able to give people a chance to stretch a certain -amount. And they could, which is why to us those ideas sound just -fine. But nobody, not even a Beethoven, is such a genius that he could -reinvent music from zero, not using any of the well-known ideas, and -make something that people would want to listen to. And nobody is such -a genius he could reinvent computing from zero, not using any of the -well-known ideas, and make something that people want to use. - <a name="index-Beethoven_002c-Ludwig-van-1"> - </a> - </p> - <p> - When the technological context changes so frequently, you end up with -a situation where what was done 20 years ago is totally -inadequate. Twenty years ago there was no World Wide Web. So, sure, -people did a lot of things with computers back then, but what they -want to do today are things that work with the World Wide Web. And you -can’t do that using only the ideas that were known 20 years ago. And I -presume that the technological context will continue to change, -creating fresh opportunities for somebody to get patents that give the -shaft to the whole field. - <a name="index-patents_002c-difference-between-copyrights-and-2"> - </a> - <a name="index-copyright_002c-difference-between-patents-and-1"> - </a> - </p> - <p> - Big companies can even do this themselves. For instance, a few years -ago - <a name="index-Microsoft_002c-and-patents"> - </a> - Microsoft decided to make a phony open standard for documents and -to get it approved as a standard by corrupting the - <a name="index-International-Organization-for-Standardization"> - </a> - International -Standards Organization, which they did. But they designed it using -something that Microsoft had patented. Microsoft is big enough that it -can start with a patent, design a format or protocol to use that -patented idea (whether it’s helpful or not), in such a way that there’s -no way to be compatible unless you use that same idea too. And then -Microsoft can make that a de facto standard with or without help from -corrupted standards bodies. Just by its weight it can push people into -using that format, and that basically means that they get a -stranglehold over the whole world. So we need to show the politicians -what’s really going on here. We need to show them why this is bad. - </p> - <p> - Now I’ve heard it said that the reason - <a name="index-New-Zealand"> - </a> - New Zealand is considering -software patents is that one large company wants to be given some -monopolies. To restrict everyone in the country so that one company -will make more money is the absolute opposite of statesmanship. - <a name="index-development_002c-patents-1"> - </a> - </p> - <hr size="2"/> - |